BC Injury Law and ICBC Claims Blog

This Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘ICBC Minor Injury Caps’

This week the BC Government published more details surrounding their new legal regime for collision victims ICBC alleges to have ‘minor’ injuries. In short it limits expert witness rights and limits fee recovery for the expenses of hiring experts.

The Accident Claims Regulation provides as follows:

– allows “on the request of a party or on the tribunal’s own initiative” for the tribunal to “appoint an expert to conduct an independent medical examination with respect to a person’s injuries related to an accident claim”

– the scope of the examination and report that follows can comment on “the nature and extent of the person’s injuries; the person’s diagnosis; the person’s condition at the time of the independent medical examination; the person’s prognosis.”

– the claimant is restricted, as a default position to “introduce expert evidence from one expert” separate from any expert the Tribunal chooses for an independent medical examination.

– the claimant can ask the tribunal for permission to have up to two additional experts “if the tribunal considers that the introduction of additional evidence is reasonably necessary and proportionate to the accident claim”.

– the following restrictions on costs recovery, both for expert witnesses and overall, are set out

(i) $2 000 is the limit prescribed for expenses and charges payable inrelation to each expert, including any expenses and charges payablein relation to reports or other evidence prepared by each expertproviding expert evidence, and(ii) $5 000 is the total limit prescribed for all recoverable fees, expensesand charges, including any expenses and charges payable undersubparagraph

Just to break down how this work. If you are injured in a crash and ICBC alleges you have a ‘minor’ injury (whether your injury is minor or not) you will have to go to the Tribunal. The Tribunal will have to decide if your injury is minor. If not you are free to go to Court. If it is deemed ‘minor’ you will remain stuck in the Tribunal for quantum to be decided unless you persuade the Tribunal that there is “a substantial likelihood that damages will exceed the tribunal limit“. These barriers must be overcome with a limited budget and experts because as a default you will be limited to one expert and can only recovery $2,000 for that expert’s services even if more is charged.

Yes, you read that right. 12 months is 1 year but according to new Laws and Regulations passed by British Columbia 12 months actually means forever.

What am I talking about? Earlier this year the BC Government passed a law capping non-pecuniary damages for what they call ‘minor’ injuries. The law states that if the injuries cause “serious impairment“, however, that they are no longer minor and not subject to the cap. Seems fair enough right? Read on.

To meet the definition of ‘serious impairment‘ in section 101(1) of the Insurance (Vehicle) Act the injury must not “be resolved within 12 months” and meet whatever further criteria the government dog-piles on via Regulation.

So when the Government tells you that injuries that last more than 12 months are not subject to the cap they are lying. They in fact require the injuries to be disabling and permanent to shed the restrictions of the cap.

This inconsistency between the Act and Regulations appears illogical, incoherent and contrary to the stated intention of capping minor injuries. A situation that opens the harsh Regulation to judicial challenge. Probably one of many to come by British Columbians impacted by these new laws in 2019.

Earlier this year the BC Government called ICBC a ‘dumpster fire’. They suggested drastic overhaul was needed to keep the Crown insurer alive and well. In order to let them keep their monopoly the rights of British Columbians injured through careless drivers would need to be stripped.

But don’t worry, the Government assured us, only those who suffer ‘minor’ injuries will have their rights reduced. All who watch Government know, however, that the Devil’s in the details. Today those details came out and their assurances were misleading. Many major injuries are caught in their ‘minor’ injury dragnet.

These Insurance (Vehicle) Regulations label a “concussion” as a “minor injury“. A concussion is a brain injury. There is no grey here. The Government lied.

This brain injury inclusion is in addition to those injuries they previously told us are minor including

Chronic Depression

Post Traumatic Stress Disorder

Conversion Disorders

Chronic Pain Syndromes

Chronic physical injuries

Disabling physical injuries

All psychological “conditions”

All psychiatric “conditions”

There is already press out suggesting that “if psychological injuries, including minor concussions, last longer than four months, the caps no longer apply. If any physical injury lasts longer than 12 months, in those cases caps will not exist.” This is not accurate. The regulations create a far more onerous workaround to this ‘minor’ injury cap than simply having symptoms persist for more than 4 or 12 months respectively. I will tackle that in a subsequent article. For now, I just wanted to call a spade a spade. The government lied. British Columbians’ rights have been drastically stripped for insurance company profit.

Today ICBC and the BC Attorney General were publicly boasting about how new laws are ‘doubling benefits’ to accident victims.

This soundbite is technically true but also profoundly deceptive.

As part of the BC Government’s so-called ‘reforms’ of the BC auto insurance landscape they have doubled ‘no-fault’ medical and rehabilitation benefits from $150,000 to $300,000.

Why is this deceptive? Because the soundbite is designed to persuade the public that their rights are being increased if they are involved in a collision when the polar opposite is true. While the ceiling of no-fault benefits are technically increased for everybody only a sliver of the population will ever access these. How few people? According to BC’s Attorney General only 40 people per year. 40!

You don’t have to take my word for it. Here is Attorney General David Eby’s response when questioned in the legislature about this benefit increase:

Lee: Just before we leave section 18, I recollect from our last committee session on this particular section that the Attorney General referred to the increase, of course, of accident benefits coverage from $150,000 lifetime to $300,000 lifetime. I’d just like the Attorney General to indicate how many instances there have been where a person’s lifetime level of $150,000 has been exceeded.

Hon. D. Eby: There are about 40 every year

Now there is nothing wrong with 40 collision victims having increased benefits. That is fine. They are catastrophically injured and need the help. But it is coming with a cost. Every single collision victim in BC is having their rights stripped as part of this trade off. EVERY British Columbian injured by an impaired, distracted or otherwise negligent driver is actually having their rights stripped. The legal changes ICBC lobbied for and the government passed include

Kyla Lee is a criminal lawyer practicing out of Vancouver well versed in issues relating to BC driving law and issues of fairness with administrative hearings. Kyla, in a regular column she pens at VancouverisAwesome, had some scathing observations about the realities of BC’s Civil Rights Tribunal being fed ICBC injury claims and the inherent unfairness that British Columbians will face under this soon to be mandatory scheme.

But the really disturbing part about this that no one has been paying much attention to is how the ability to prescribe by regulation flows together. Not only can regulations enacted by the BC Government increase the amount of the Civil Resolution Tribunal’s jurisdiction but the definition of minor injury can also be amended by regulation.

What this means is that if Government does not like the fact that too many claims are being paid out for a particular type of injury, say, a broken leg, it can call a broken leg a “minor injury” by enacting a quick regulation and suddenly those who have suffered a broken leg are left without a remedy in court. Instead, they are at the mercy of the Civil Resolution Tribunal.

And there are more troubling changes to the Civil Resolution Tribunal legislation that should have the public gravely concerned. The enabling statute has been amended to state explicitly that the tribunal is an expert tribunal in any area where the legislation states they have specialized expertise.

Care to hazard a guess about one area in which a tribunal that has heretofore not dealt with motor vehicle accident claims has specialized expertise? If you guessed motor vehicle accident claims, you are picking up on this disturbing trend.

The specialized expertise designation is of particular importance when considering the ability to appeal decisions of the tribunal. These appeals are known as judicial review.

Under the rules of administrative law, a tribunal with specialized expertise is supposed to be afforded substantial degrees of deference. This means that judges cannot overrule their decisions unless there is a clear error or a clearly unreasonable finding. Moreover, the court is required to defer to the tribunal’s own interpretation of the law in areas where it has specialized expertise. So if the tribunal says that “depression and anxiety” are “psychological conditions” that constitute minor injuries, a court cannot interfere with that finding unless it is unreasonable, even if there are other reasonable interpretations that say otherwise.

Now who is in charge of this ‘specialized tribunal‘? BC’s Attorney General, the same person in charge of ICBC’s so-called ‘dumpster fire‘. It does not take an overly critical lens to see concern when the person in charge of ICBC is also in charge of appointing ‘specialists’ subject to limited judicial oversight to adjudicate British Columbians ICBC disputes.

Well the BC Government did it. Despite a written election promise not to strip British Columbians judicial rights to fix the ‘dumpster fire’ at ICBC they did exactly that. With an extra dose of hypocrisy they expressly targeted those suffering collision related psychiatric conditions while celebrating “mental health week”.

The BC NDP along with the Green Party went ahead and blamed “judges, lawyers and drivers“and passed Bill 20 into law.

Bill 20 breaks the above promise in just about every way possible. In short Bill 20, along with Bill 22 that was passed earlier this week

This legislation, which will apply to all crashes after April 1, 2019 discriminates against people who sustain psychiatric and psychological conditions and will undoubtedly face constitutional challenge. Today the BC Trial Lawyers published the below opinion suggesting legal challenge is imminent to this law and the saga of ICBC’s ‘dumpster fire’ and the government’s ill conceived response to it is far from over.

Today the BC Psychological Association weighed in on these proposed laws and unsurprisingly are harshly critical. In discussing the medical reality of psychological injuries the BCPA notes as follows –

The British Columbia Psychological Association opposes the inclusion of “a psychological or psychiatric condition” in the definition of “minor injury” in Bill 20. We feel it will be detrimental to the health and care of British Columbians who sustain injuries in motor vehicle accidents.

Under Bill 20, any psychological or psychiatric condition arising from a motor vehicle accident is deemed to be minor, unless it has not resolved within 12 months from the MVA, and also meets, as yet undefined, prescribed criteria.

BCPA disagrees and takes the positions that:

Psychological injuries are not minor injuries. Each individual is unique in their symptoms.

It is very difficult to determine the twelve-month outcome of a psychological injury as it may be affected by pain, restrictions in functioning due to physical injuries, and pre-accident history, including prior history of depression, anxiety, substance use, adverse early childhood experiences, including neglect and trauma, poor coping styles, and cultural factors.

The duration of symptoms after an event is not an appropriate scientific measure of the severity of the psychological injury.

Psychological conditions may arise at different times after a collision, depending upon a number of factors. Many potentially severe psychological conditions, such as post-traumatic stress disorder, depression, and anxiety, may have an initial onset shortly after, or months after, a collision.

Psychological conditions may appear to resolve, only to recur at a later date due to a change in circumstance, prolonged recovery, or a triggering event such as a return to work, a return to driving, or anniversary of the collision.

Bill 20 gives Government the authority to make regulations with respect to assessment, diagnosis and treatment of minor injuries (including psychological injuries). Because of the unique circumstances of each individual, psychological injuries do not lend themselves to such an approach. Each individual must be assessed by a qualified psychology professional and prescribed the treatment that will best lead to an optimal recovery for them.

If the appropriate treatment is not commenced as psychological symptoms manifest, it may lead to prolonged suffering, delayed return to work, impaired activities of daily living, and in increased treatment and wage loss costs in the long run.

Removing psychological and psychiatric conditions from the “minor injury” designation will help achieve the goal of people receiving better care and optimal recovery in the shortest time possible.

BCPA is also concerned with the proposed amendments to the Civil Resolution Tribunal Act.

Under the Act, the determination of whether an injury is “minor” and the entitlement to benefits from ICBC, is exclusively given to the Civil Resolution Tribunal.

Those suffering from psychological conditions are ill-equipped to deal with an appeal process on their own.

It is also unlikely that many of those people will be able to have the assistance of a lawyer in this process.

This process, online and/or in person, also puts at a disadvantage the elderly, people without computers or computer skills, those with poor English language skills, and those of limited means.

BCPA applauds this government’s efforts to address the mental health and addictions issues of British Columbians, but classifying psychological and psychiatric conditions as “minor” runs the risk of taking a step back in the treatment of psychological injuries arising from a car accident.

I’ve written extensively about some of the troubling changes the government is proposing for collision victims through their ICBC legal reforms. One topic that has yet to receive any press, and is perhaps as concerning as any, is the Government’s proposal to give ICBC and themselves total power over what therapies collision victims receive.

If you are injured in a crash by a careless driver you have the right to choose your own health care treatments. If these expenses are deemed ‘reasonable’ you are entitled to be paid back the full cost of your expenses from the at fault driver’s insurance company (usually ICBC for BC based crashes).

This will all change if the NDP pass Bill 20. Instead an injured collision victim will be stripped in their ability to recover actual ‘health care losses’ from ICBC and recovery is reduced only to an amount that the government establishes by regulation. If your actual medical costs exceed this you are out of luck. The government is stripping your right to sue for the difference. Specifically proposed s. 82.2 reads as follows:

Liability limited for health care costs

82.2 (1) In this section, “health care loss” means a cost or expense incurred or to be incurred for health care provided by a health care practitioner.

(2) In an action for damages caused by a vehicle or the use or operation of a vehicle, a person may not recover, for a health care loss, an amount that exceeds one of the following:

(a) the amount, if any, that is established or determined for the particular health care loss under a regulation under section 45.1 (1) (a);

(b) in any other case, the value of the particular health care loss.

(3) If, for the purposes of this section, it is necessary to estimate the value of a health care loss, the value must be estimated according to the value the deferred health care loss has on the date of the estimate determined in accordance with subsection (2).

(4) This section applies only in relation to a health care loss resulting from an accident occurring on or after April 1, 2019.

If you are concerned about these changes contact your MLA and speak up now. Bill 22 is set to pass into law imminently and time to persuade government to divert course is quickly running out.

In debate this week the Government admits that their purpose in funnelling claims here is to create an unfair landscape. They expressly state they hope to discourage the injured party from hiring a lawyer and to have you face an ICBC “specialist” in the dispute.

Here is our Attorney General expressly stating the intent of the legislation is to discourage people from hiring a lawyer when they are forced to litigate an injury claim:

The intent is to have this tribunal operate in most cases without counsel. You’ll see, in this section that we’re talking about, that we’re making an exception, saying:

“Look, if you really want to bring a lawyer here, given the amount of money that you’re going to pay in legal fees and the amount that’s under dispute, which by definition under this act, is less than $50,000…. If you really want to bring a lawyer, you can bring a lawyer. But the amount of money that you’re going to spend on your lawyer is going to eat up a lot of your award, so it’s probably not to your interest.”

So, the Government has created a system where they don’t want you to have a lawyer. And who do they want you to face in the Tribunal? An ICBC “specialist.“.

Again, from our Attorney General

The intention is currently that an ICBC adjuster would attend. ICBC would be the respondent to the claim. So when someone who has been in an accident doesn’t agree with what the adjuster has said their claim is worth…. they can go to the civil resolution tribunal to have that dispute heard. There has to be someone on the other side saying here’s what we think the claim is worth. Currently, ICBC’s thinking is…. that that person would be an adjuster….They are specialists in determining the value of claims.

So those people would be attending the hearing, making representations to the tribunal about what their position is — what the claim is worth. The person who was in the accident makes representation, with their medical records and their costs and so on, to the tribunal about what they think the claim is worth. Then the tribunal would make a decision

So there you have it. The purpose of the government’s new law is to reduce your right to compensation when injured by a distracted or impaired driver and if you don’t like it to have your dispute heard, without a lawyer, facing an insurance company paid for “specialist”.

As previously discussed, the first Bill looks to label almost every injury suffered by collision victims as “minor” stripping people’s right to compensation. Included in the Government’s definition of ‘minor’ injury are:

Chronic Depression

Post Traumatic Stress Disorder

Conversion Disorders

Chronic Pain Syndromes

Chronic physical injuries

Disabling physical injuries

All psychological “conditions”

All psychiatric “conditions”

The government is trying to sell this to the public by arguing it is fair to strip the rights of collision victims with the above injuries in order to give all people injured in collisions (including the at fault motorist) more generous rehabilitation benefits. The Devil is in the details however and included in the proposed legal reforms is ICBC judicial immunity.

If ICBC refuses to pay these so-called more generous benefits the law gives them judicial immunity. Division 7 of the Civil Resolution Tribunal Amendment Act takes away the public’s right to challenge ICBC’s denial of accident benefits in court and instead requires “the determination of entitlement to benefits paid or payable” to go through a Tribunal not run by judges but instead Government appointed bureaucrats.

Before the Government passes these changes into law a fundamental question is do you trust ICBC so much that they should be granted judicial immunity? If not, please speak up to your MLA immediately as the window to do so is short.

This blog is authored by personal injury and ICBC Claims lawyer Erik
Magraken. Use of the site and sending or receiving information through it
does not establish a solicitor / client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes.
It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client
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